Younker v. City of Wood River

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BOBBI JO YOUNKER, Plaintiff, v. CITY OF WOOD RIVER, ILLINOIS; BRAD WELLS; and CHRIS JOHNSON, Defendants.

No. 22-cv-204-JPG

United States District Court, S.D. Illinois

May 4, 2023

MEMORANDUM AND ORDER

J PHIL GILBERT, DISTRICT JUDGE

This matter comes before the Court on the defendants' motion for summary judgment (Doc. 32). Plaintiff Bobbi Jo Younker has responded (Doc. 37), and the defendants have replied to that response (Doc. 39). In connection with the summary judgment motion, the defendants have filed two motions to strike two exhibits Younker filed in connection with her response (Doc. 40 & 45). Younker has responded (Doc. 41) and the defendants have replied to that response (Doc. 42).

Younker a police officer for the defendant City of Wood River at all relevant times, brings this case asserting claims for discrimination and harassment based on her sex/sexual orientation (lesbian) and for retaliation based on her complaints about that discrimination and harassment. At most relevant times, defendant Brad Wells was the Chief of Police of the Wood River Police Department (“WRPD”), and defendant Chris Johnson was the Deputy Police Chief. Younker claims they participated in and failed to remedy known discrimination, harassment and retaliation.

Because there is little evidence of a hostile working environment or a neutral employment policy that fell more harshly on a protected group, the Court will grant summary judgment for the defendants on Younker's harassment and disparate impact claims. And while it is clear the defendants treated Younker's differently than it treated her coworkers, it is a very close call whether the disparate treatment was because of her sex/sexual orientation, so the Court will deny summary judgment and send those claims to the jury. Similarly, Younker's retaliation claim is sufficiently supported to go to a jury.

I. Summary Judgment Standard

Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Nevertheless, the “favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture.” Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 503 (7th Cir. 2017) (internal quotations and citations omitted). This standard is applied with special scrutiny in cases, such as employment discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).

The initial summary judgment burden of production is on the moving party to show the Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the nonmoving party carries the burden of proof at trial, the moving party may satisfy its burden of production in one of two ways. It may present evidence that affirmatively negates an essential element of the nonmoving party's case, see Fed. R. Civ. P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the nonmoving party's case without actually submitting any evidence, see Fed.R.Civ.P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet its strict burden, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.

II. Facts

A. Evidence Considered

The defendants urge the Court to strike two declarations submitted in support of Younker's opposition to their summary judgment motion. They argue that the statements are not sworn or declared under penalty of perjury and contain statements not made on the declarant's personal knowledge.

Federal Rule of Civil Procedure 56(c)(4) requires that, at the summary judgment stage, declarations be made based on the declarant's personal knowledge and set out facts that would be admissible in evidence. Furthermore, to be used at the summary judgment stage, statements must be sworn, for example, in an affidavit or deposition, or declared as true under penalty of perjury pursuant to 28 U.S.C. § 1746. If they are not, the Court must disregard them. See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985); see, e.g., Garner v. Kinnear Mfg. Co., 37 F.3d 263, 268-69 (7th Cir. 1994).

The two exhibits in question are the unsworn declarations of Brandon Desherlia, a former police officer and sergeant with the WRPD, and Joshua Timmins, a sergeant with the WRPD and union representative for the WRPD police officers. The original declarations attached to Younker's summary judgment response (Docs. 37-12 & 37-13) are not sworn and are not declared under penalty of perjury pursuant to 28 U.S.C. § 1746. Younker has since submitted amended statements from Desherlia and Timmins declared under penalty of perjury (Docs. 43 & 44).

It is clear that the original declarations cannot support Younker's opposition to summary judgment because they were not sworn or declared under penalty of perjury. However, Younker has promptly and adequately cured this defect by submitting amended declarations within two weeks of when the defendants noted the deficiency. The defendants complain that those declarations are late because they were not filed by the response deadline and urge the Court to strike them. The Court declines to do so. The defects have been cured, and the defendants have suffered no prejudice from Younker's failure to meet the response deadline. The substance of the declarations was revealed in time-and possibly in earlier discovery as well-so the defendants could not have been surprised by the late declarations. The defects having been cured and the defendants having suffered no prejudice, the Court will deny the motions to strike based on the failure to be sworn or declared under penalty of perjury.

The defendants also object that the declarants make statements not based on personal knowledge but instead based on speculation or hearsay. While it is true that declarants may only make statements based on their personal knowledge, the Court has reviewed the declarations in issue and finds that many of the statements therein qualify as based on personal knowledge. To the extent they stray into speculation or hearsay, the Court will disregard those particular statements for the purposes of this motion. The Court notes, however, that some of the “speculation” cited by the defendants actually reflects reasonable inferences that the Court must make in Younker's favor at the summary judgment stage. The Court will not strike the declarations. Instead, in setting forth the facts for the purposes of this motion, it will consider the statements made on personal knowledge in the declarations made under penalty of perjury (Docs. 43 & 44) and the reasonable inferences that can be drawn from those statements.

B. Facts

Viewing all the admissible evidence and the reasonable inferences that can be drawn from it in Younker's favor, the evidence establishes the following relevant facts for the purposes of this motion.

Younker began working as a patrol officer for the WRPD in January 2007. Younker is a lesbian and is open about her sexual orientation. Several months after she began working for the WRPD, two of her coworkers began asking her intrusive questions and making comments about her sexual orientation and preferences. Younker did not report the inappropriate comments at the time, and over time, the coworkers became friends with Younker and their comments stopped or slowed down.

In 2009, defendant Johnson, began regularly making inappropriate comments to Younker displaying stereotypes about lesbians, how they present themselves, and the nature of their relationships. Those statements included disapproval of Younker's behavior displaying or expressing her sexual orientation. Those comments were continuous over the years that followed until February 2020, including after Johnson became deputy chief in January 2019. Younker did not report Johnson's comments or other harassment, discrimination or retaliation by Johnson and Wells until 2019, when Desherlia became her supervising sergeant. In fact, in connection with a 2011 sexual harassment training, she expressly denied she had experienced sexual harassment at work.

Younker's supervisors had differences of opinion on her job performance. Johnson thought Younker was a capable officer...